Citation Nr: 0214567
Decision Date: 10/18/02 Archive Date: 10/29/02
DOCKET NO. 00-02 227A ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUE
Entitlement to special monthly compensation (SMC) based on
loss of use of the right foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served on active duty from February 1986 to
September 1993.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1996 RO decision that denied, in
pertinent part, entitlement to special monthly compensation
(SMC) based on loss of use of the right foot.
The Board notes that the veteran specifically withdrew all
other pending appeals, including a claim relating to an
increased rating for residuals of right ankle fusion.
FINDINGS OF FACT
1. The veteran is service-connected for residuals of right
ankle fusion, which is evaluated as 30 percent disabling.
2. The veteran's service-connected right ankle disability
affects her right foot, but there is remaining function in
the right foot such that she would not be equally well served
by a right foot amputation stump with prosthesis.
CONCLUSION OF LAW
The criteria for SMC based on loss of use of the right foot
have not been met. 38 U.S.C.A. § 1114(k) (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.350, 4.63 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual background
The veteran served on active duty from February 1986 to
September 1993.
Service medical records show that she injured her right ankle
when she fell into a hole in May 1992; in March 1993, she
underwent debridement with drilling of the talar dome.
In February 1994, the RO awarded service connection for the
right ankle disability, which it rated 10 percent.
At that time or since then, service connection has also been
established for major depression (now rated 50 percent);
fusion of C5-6 and C6-7 (30 percent); left patellofemoral
syndrome (10 percent); muscle tension headaches (10 percent);
right patellofemoral syndrome with synovitis (0 percent);
residuals of fracture of the right little finger (0 percent);
and residuals of fracture of the left little finger (0
percent). The veteran currently is also assigned a total
disability rating based on individual unemployability, due to
her service-connected conditions.
She underwent arthroscopy of the right ankle with debridement
in July 1994. She underwent right ankle fusion (ankle
arthrodesis with AO fixation) in August 1994 for degenerative
joint disease secondary to talar dome fracture. A screw
from the ankle fusion was removed in December 1994.
A VA podiatrist wrote in February 1995 that the veteran had a
significant disability in that she had had no motion at the
right ankle. Her ability to ambulate and stand for long
periods was severely diminished.
On VA examination of April 1995, she complained of residual
pain and intermittent swelling. Examination revealed mild to
moderate swelling with some pain. On range of motion
testing, the right ankle demonstrated 0 degrees of
dorsiflexion, about 0 degrees of plantar flexion, 4 degrees
of inversion, and 4 degrees of eversion. The right ankle was
surgically fused in a fixed position of 5 degrees of plantar
flexion.
On follow-up VA treatment in August 1995 for the ankle
fusion, she reported that she had been on her feet a lot; she
had been taking Motrin for the pain and had been using a heel
lift. She was advised to avoid bearing weight on her right
foot for 2 weeks and then to return to using a rocker bottom
shoe on the right.
In October 1995 correspondence, the veteran asserted that she
could not push off her ankle when walking and that she had
lost the use of her right foot for all practical purposes.
In December 1995, the veteran underwent an anterior tibial
osteotomy of the right ankle.
In December 1995, the veteran's representative requested SMC
based on loss of use of the right foot.
On VA follow-up treatment in February 1996 for recent ankle
surgery, it was noted that she had started partial weight
bearing with pain and swelling. Several weeks later, that
month, she reported that her ankle hurt most after activity;
however, she was continuing weight bearing.
On December 1996 treatment for right foot pain, it was noted
that she had pain with any range of motion of the subtalar
joint; there was no edema or erythema. That month she
presented for treatment with crutches for her bad ankle.
In January 1997, in connection with complaints of right knee
pain, it was noted that she could walk. She had limited
range of motion of the right ankle, including pain past 45
degrees. That month she underwent subtalar joint fusion of
the right foot with fixation. Pain continued, and on
evaluation in April 1997, she was found to have limited range
of motion, with pain past 45 degrees. Fixation screws were
removed later in April 1997.
She underwent a VA examination in July 1997. She complained
of pain on overuse of the right foot, but she was actually
happy with the tibiotalar fusion that had been performed
previously. Her right ankle was fused in a satisfactory
position; there was very little subtalar motion as well, but
there was good forefoot motion. She was neurovascularly
intact. There was no pain with compression about the ankle
joint or the mid foot. The impression was status post right
ankle fusion of the tibiotalar joint with degenerative
arthritis of the subtalar joint, awaiting subtalar fusion.
On a July 1997 VA examination, she complained of daily
constant pain in the right foot. She said she could not walk
without a limp or bear full weight on her right lower
extremity due to significant foot pain. She reported not
being able to stand for long periods and having lost
significant function and mobility in the right foot and
ankle. She could only tolerate wearing a high-topped boot
laced very tightly. She said that at least once a month she
had flare-ups that caused her to be non-weight-bearing for
several days; during the flare-ups, she used assistive
devices, including a cane and crutches. On examination,
there was no edema, and pedal pulses were intact.
Neurologically, her sensory and motor systems were intact.
Muscle strength was weaker on the right. She had significant
loss of motion; she could not dorsiflex or plantar flex the
right ankle due to ankle fusion. On orthopedic examination,
she had no motion of the right ankle due to the fusion and
significant pain at the subtalar joint that caused severe
pain on motion. She had lost most of the motion in the
subtalar joint and had significant pain on eversion and
inversion. She had 10 degrees of motion in the subtalar
joint, out of a normal motion of 20 degrees. Her gait was
markedly altered; she had antalgic gait with significantly
abducted gait to accommodate her ankle fusion. She also had
a limb length with a tilt to the right side, consistent with
the amount of bone removed in her surgeries. The X-ray
showed a completely fused right ankle, with loss of joint
space at the subtalar joint; she also had loss of the fibular
malleolus, which had been used as a graft in the ankle
fusion. The diagnosis was significant gait alteration and
significant loss of function and motion of the right ankle.
The examiner noted that a fusion would probably be needed
because of the failure of conservative therapy and
injections.
In October 1997, the RO increased the right ankle disability
rating to 30 percent.
In February 1998, the RO again denied SMC for loss of use of
the right foot.
In May 1998, the veteran asserted that she did not have more
use of her foot than a person with an artificial foot. She
said she could not push off her foot or move it, and when she
walked, she rolled over on her foot.
In August 1999, she underwent a subtalar fusion of the right
foot.
On VA examination of the feet in October 1999, she complained
of daily pain over the right foot that was relieved only by
immobilization with a hard cast and non-weight-bearing. She
presented with a walking cast boot and in a wheelchair. She
was still recuperating from recent right foot surgery, but
she was able to bear partial weight on the right foot. She
had significant right weakness and atrophy of the whole
musculature of the lower extremity. She had multiple right
foot scars that were well-healed, non-hypertrophic, and non-
hypersensitive, albeit slightly hyperpigmented. There was
complete fusion of the right ankle and right hind foot with 0
degrees in motion at both the ankle and hind foot areas.
There still was pain on the lateral aspect, the sinus tarsi
area overlying the scar area from the recent subtalar fusion.
Her foot appeared to be in good alignment, fixed at
approximately 0 degrees at the ankle with slight valgus of
the heel. There was limited motion of about 5 degrees of
dorsiflexion at the mid-tarsal joint area of the
talonavicular joint and calcaneal cuboid joint. She could
stand fully on the right foot, but she had pain with
ambulation that was likely due to the recent surgery. The
examiner commented that the right foot appeared to be in good
position for ambulation, but complete loss of motion at two
of the joints had significantly diminished overall level of
activity and functioning and would severely limit the amount
of normal walking.
The RO again denied special monthly compensation for loss of
use of the right foot and ankle in a December 1999 decision.
II. Analysis
Through discussions in correspondence, the rating decision,
and the supplemental statements of the case, the veteran has
been notified of the evidence needed to substantiate her
claim, and of the responsibility of the VA and her for
obtaining evidence. Pertinent identified evidence has been
obtained. The notice and duty to assist provisions of the
law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159); Quartuccio v. Principi, 16 Vet. App. 183
(2002).
In pertinent part, SMC may be awarded if the veteran, as the
result of a service-connected disability, has suffered
anatomical loss or "loss of use" of a foot. 38 U.S.C.A. §
1114(k); 38 C.F.R. § 3.350(a). Loss of use of a foot will be
held to exist when no effective function remains other than
that which would be equally well served by an amputation
stump at the site of the election below knee with use of a
suitable prosthesis. The determination will be made on the
basis of the actual remaining function, whether the acts of
balance, propulsion, etc., in the case of a foot, could be
accomplished equally well by an amputation stump with
prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63. Examples of
loss of use of a foot include extremely unfavorable ankylosis
of the knee or complete ankylosis of two or more major joints
of an extremity, or shortening of the lower extremity of 3
1/2 inches or more. Another example of loss of use of a foot
is complete paralysis of the external popliteal nerve (common
peroneal) and consequent footdrop, accompanied by
characteristic organic changes including trophic and
circulatory disturbances and other concomitants confirmatory
of complete paralysis of this nerve. Id.
The veteran has undergone several surgical procedures for her
right ankle disability, including ankle fusions. After
these surgeries, she has been advised to avoid bearing weight
on the right foot as part of the recuperation process,
although after post-surgical convalescence she has been able
to use the foot to stand and ambulate.
The 1997 VA examination diagnosed significant gait alteration
and significant loss of function and motion of the right
ankle. Additionally, on orthopedic examination at that time,
she had no motion of the right ankle due to the fusion and
significant pain at the subtalar joint that caused severe
pain on motion, and she had lost most of the motion in the
subtalar joint. She also reported that she needed assistive
devices during flare-ups, but that these flare-ups lasted for
several days per month, not constantly. More recently, on a
1999 VA examination soon after additional foot surgery, she
could stand fully on the right foot, but she had pain with
ambulation that was likely due to the recent surgery. The VA
examiner commented that the right foot appeared to be in good
position for ambulation, but complete loss of motion at two
of the joints had significantly diminished her overall level
of activity and functioning and would severely limit the
amount of normal walking she could accomplish. It appears
likely that right foot function will further improve as she
recovers from the last operation.
The veteran's service-connected right ankle disability is now
rated as 30 percent disabling. While her right ankle
disability may significantly affect foot functioning such as
standing and walking, it is clear that she is far better off
than having her foot amputated. Effective right foot
function remains, as she can ambulate to some degree and can
bear weight on the right foot. There is no indication that
the acts of balance or propulsion could be accomplished
equally well by an amputation stump with prosthesis. Her
significant limitation of right ankle motion and other
functional impairment of the foot are not the equivalent of
loss of use of her foot.
Thus the Board finds that the requirements for SMC based on
loss of use of the right foot are not met. As the
preponderance of the evidence is against the claim, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to SMC based on loss of use of the right foot is
denied.
L.W. TOBIN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.